FIVE NOT-SO-BORING THINGS TO KNOW ABOUT CIVIL TRIALS IN THE GHANAIAN COURTS

Introduction

Litigation can be complicated. But the idea behind it is not. It is a little (but effective) idea. People disagree and fight. Left to do as they please, people would take the law into their own hands and cause social chaos. So a group of wise people designed a system of fighting – civilised fighting.

It may be a factfinding exercise. And a law-dispensing exercise. But, let nobody deceive you, it is not a truth-finding exercise. It was never intended to be. That is why we use words like evidence, proof, balance, reasonable, probability, hearsay, admissible (you get the point).

Litigation, then, is just a reasonable and civilised way of resolving disputes without breaking the so-called social contract.

So, litigation can be technical and all. But it can be explained to people whose technical knowledge happens to be in other areas rather than law. Here are five elements of civil trials in the Ghanaian courts (in case you are just curious, or are preparing to sue somebody or have been sued by somebody).

1.    Witnesses Write Statements (Not Speak) about Their Version of Events

Until a few years ago, a witness in a case had to prep days before court. In court, they sat in the witness box and recited their story to the court. Then they were questioned (cross-examined) by an opposing lawyer. No more. Now, witnesses write their recollection of events in a full statement (a witness statement). They can edit it and rewrite it in any way they like. (Ok, in truth, they tell their story, but lawyers write it down for them). And that is a big part of giving evidence. Cross-examination, though, is still done by speaking (both the opposing  lawyer and the witness).

2.    You Can Have Access to Your Opponents’ documents

 Sometimes, as a party in a dispute, you know what happened. You can explain it. But you do not have all the evidence you need. You know there is sure to be a document backing you up. But your opponent has the document. You have legal ways of trying to get a copy of that document from your opponent. Sometimes your opponent mentions a document by name, of which you do not have a copy. You can get a copy of that. There are many other scenarios where you can get copies of documents you do not have, but which you reasonably suspect to exist. Too bad we do not use these procedures enough.

3.    Smoking-Gun Evidence Does Not Need to Go Through a Full Trial

Imagine that somebody owes you $20,000. It is past the time they agreed to repay you. When you chase up by email, they write back to apologise for defaulting and ask for another two weeks to pay. But no payment materialises after two weeks. Do you need to go through a full court trial (anything from 10 months to three years) to prove the debt and try to collect their money, when you have clear evidence of the debt? Certainly not. If you have a ‘smoking gun’ for evidence (usually documents which cannot be questioned) you can apply to the court for a quick and early judgment known as summary judgment.

4.    The Judge (Not a Jury) is the Factfinder

Yeah, yeah, there is that thing about being tried before a jury of your peers. But in Ghana, a civil case (think a case between private people or entities) does not take place before a jury. The judge is both the trier of fact and the trier of law. There is little need for or advantage in a lawyer affecting flamboyance or playing to the gallery. I hear somebody’s loud mind asking whether one person (the judge) is better positioned to determine the facts of a case than multiple persons who live in the same community as the disputing parties? Excuse the pun, but the jury of my mind is still out on this point.

5.    We Rely on Experts and Referees Too

In really technical cases, the judges sometimes need the help of experts to explain fine points. Sometimes, the parties call the experts. Sometimes it is the court which calls the experts. To illustrate, a judge may understand the law on negligence and personal injury. But they may need an aviation expert to explain whether a landing incident was caused by a negligent pilot or not. And they may need to understand (from an expert) what is considered standard behaviour by a pilot and what is deviant. Sometimes, judges appoint ‘referees’ over technical issues (e.g. accounting) in a case. It may (or may not) be like what a substitute teacher is to a teacher. When appointed by the courts, referees conduct inquiries and make findings on technical issues. The judge is not bound to follow a referee’s findings, but they may be persuaded by the findings.

Conclusion

 There you have it. Five things to know about civil cases in the Ghanaian courts. As stated, the whole litigation game (yes, G.A.M.E.) is designed for civilised fighting and to prevent people from taking the law into their own hands. There are several rules designed to keep it a fair game. These have been just a smattering of those rules. We will discuss others from time to time.